- Consolidated Laws - Family Court
PART 4
LAW GUARDIANS
Section 241. Findings and purpose.
242. Law guardian.
243. Designation.
244. Duration of designation.
245. Compensation.
246. Supervision by administrative board.
248. Appropriations.
249. Appointment of law guardian.
249-a. Waiver of counsel.
S 241. Findings and purpose. This act declares that minors who are the
subject of family court proceedings or appeals in proceedings
originating in the family court should be represented by counsel of
their own choosing or by law guardians. This declaration is based on a
finding that counsel is often indispensable to a practical realization
of due process of law and may be helpful in making reasoned
determinations of fact and proper orders of disposition. This part
establishes a system of law guardians for minors who often require the
assistance of counsel to help protect their interests and to help them
express their wishes to the court. Nothing in this act is intended to
preclude any other interested person from appearing by counsel.
S 242. Law guardian. As used in this act, "law guardian" refers to an
attorney admitted to practice law in the state of New York and
designated under this part to represent minors pursuant to section two
hundred and forty-nine of this act.
S 243. Designation. (a) The office of court administration may enter
into an agreement with a legal aid society for the society to provide
law guardians for the family court or appeals in proceedings originating
in the family court in a county having a legal aid society.
(b) The appellate division of the supreme court for the judicial
department in which a county is located may, upon determining that a
county panel designated pursuant to subdivision (c) of this section is
not sufficient to afford appropriate law guardian services, enter into
an agreement, subject to regulations as may be promulgated by the
administrative board of the courts, with any qualified attorney or
attorneys to serve as law guardian or as law guardians for the family
court or appeals in proceedings originating in the family court in that
county.
(c) The appellate division of the supreme court for the judicial
department in which a county is located may designate a panel of law
guardians for the family court and appeals in proceedings originating in
the family court in that county, subject to the approval of the
administrative board of the courts. For this purpose, it may invite a
bar association to recommend qualified persons for consideration by the
said appellate division in making its designation, subject to standards
as may be promulgated by such administrative board.
S 244. Duration of designation. (a) An agreement pursuant to
subdivision (a) of section two hundred forty-three of this chapter may
be terminated by the office of court administration by serving notice on
the society sixty days prior to the effective date of the termination.
(b) No designations pursuant to subdivision (c) of such section two
hundred forty-three may be for a term of more than one year, but
successive designations may be made. The appellate division proceeding
pursuant to such subdivision (c) may at any time increase or decrease
the number of law guardians designated in any county and may rescind any
designation at any time, subject to the approval of the office of court
administration.
S 245. Compensation. (a) If the office of court administration
proceeds pursuant to subdivision (a) of section two hundred forty-three
of this chapter, the agreement shall provide that the society shall be
reimbursed on a cost basis for services rendered under the agreement.
The agreement shall contain a general plan for the organization and
operation of the providing of law guardians by the respective legal aid
society, approved by the said administrative board, and the office of
court administration may require such reports as it deems necessary from
the society.
(b) If an appellate division proceeds pursuant to subdivision (b) of
such section two hundred forty-three, the agreement may provide that the
attorney or attorneys shall be reimbursed on a cost basis for services
rendered under the agreement. The agreement shall contain a general plan
for the organization and operation of the providing of law guardians by
the respective attorney or attorneys, and the appellate division may
require such reports as it deems necessary from the attorney or
attorneys.
(c) If an appellate division proceeds pursuant to subdivision (c) of
such section two hundred forty-three, law guardians shall be compensated
and allowed expenses and disbursements in the same amounts established
by subdivision three of section thirty-five of the judiciary law.
S 246. Supervision by administrative board. The administrative board
of the judicial conference may prescribe standards for the exercise of
the powers granted to the appellate divisions under this part and may
require such reports as it deems desirable.
S 248. Appropriations. The costs of law guardians under section two
hundred forty-five shall be payable by the state of New York within the
amounts appropriated therefor.
S 249. Appointment of law guardian. (a) In a proceeding under article
three, seven or ten of this act or where a revocation of an adoption
consent is opposed under section one hundred fifteen-b of the domestic
relations law or in any proceeding under section three hundred
fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four,
three hundred eighty-four-b or three hundred ninety-two of the social
services law or when a minor is sought to be placed in protective
custody under section one hundred fifty-eight of this act, the family
court shall appoint a law guardian to represent a minor who is the
subject of the proceeding or who is sought to be placed in protective
custody, if independent legal representation is not available to such
minor. In any proceeding to extend or continue the placement of a
juvenile delinquent or person in need of supervision pursuant to section
seven hundred fifty-six or 353.3 of this act or any proceeding to extend
or continue a commitment to the custody of the commissioner of mental
health or the commissioner of mental retardation and developmental
disabilities pursuant to section 322.2 of this act, the court shall not
permit the respondent to waive the right to be represented by counsel
chosen by the respondent, respondent`s parent, or other person legally
responsible for the respondent`s care, or by a law guardian. In any
other proceeding in which the court has jurisdiction, the court may
appoint a law guardian to represent the child, when, in the opinion of
the family court judge, such representation will serve the purposes of
this act, if independent legal counsel is not available to the child.
The family court on its own motion may make such appointment.
(b) In making an appointment of a law guardian pursuant to this
section, the court shall, to the extent practicable and appropriate,
appoint the same law guardian who has previously represented the child.
Notwithstanding any other provision of law, in a proceeding under
article three following an order of removal made pursuant to article
seven hundred twenty-five of the criminal procedure law, the court
shall, wherever practicable, appoint the counsel representing the
juvenile offender in the criminal proceedings as law guardian.
S 249-a. Waiver of counsel. A minor who is a subject of a juvenile
delinquency or person in need of supervision proceeding shall be
presumed to lack the requisite knowledge and maturity to waive the
appointment of a law guardian. This presumption may be rebutted only
after a law guardian has been appointed and the court determines after a
hearing at which the law guardian appears and participates and upon
clear and convincing evidence that (a) the minor understands the nature
of the charges, the possible dispositional alternatives and the possible
defenses to the charges, (b) the minor possesses the maturity, knowledge
and intelligence necessary to conduct his own defense, and (c) waiver is
in the best interest of the minor.
